December 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RASHEED ROSS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-10-4117.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2008
Before Judges Carchman and Simonelli.
After a bench trial, defendant Rasheed Ross was convicted of third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (count three); and second-degree employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6 (count four). At sentencing, the trial judge merged count one with count three and imposed a mandatory extended eight-year term of imprisonment with a four-year period of parole ineligibility. The judge also imposed a concurrent four-year term of imprisonment on count two, and a consecutive six-year term of imprisonment with a three-year period of parole ineligibility on count four as well as the appropriate assessments, penalties and fees, and suspended defendant's driver's license for twelve months.
On appeal, defendant raises the following contentions:
BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS ENGAGED IN DRUG TRAFFICKING, THE TRIAL COURT SHOULD HAVE GRANTED HIS MOTION FOR A JUDGMENT OF ACQUITTAL.
PURSUANT TO R. 3:20-1 AND IN THE INTEREST OF JUSTICE, THE JUDGE SHOULD HAVE DIRECTED THE ENTRY OF A NEW JUDGMENT GRANTING DEFENDANT A NEW TRIAL AFTER THE DEFENDANT PROVIDED ADDITIONAL TESTIMONY. (Not Raised Below)
THE COURT ERRED IN IMPOSITION CONSECUTIVE SENTENCES; IN ADDITION, THE CASE MUST BE REMANDED FOR RE-SENTENCING PURSUANT TO STATE V. THOMAS.
A. The Imposition of Consecutive Sentences was unjustified.
B. The Case Should Be Remanded Pursuant to State v. Thomas.
We reject these contentions and affirm.
The following facts are summarized from the record. At approximately 8:00 p.m. on July 27, 2005, Officer Raul Beltran, a ten-year veteran of the Camden Police Department, and Officer Gabriel Mateo, a seven-year veteran of the Camden Police Department, were in plain-clothes in an unmarked police vehicle conducting surveillance in the area of 3400 Westfield Avenue in Camden, a known high-crime area. Both officers had extensive training and experience in narcotics-related investigations and each had made over 200 narcotics arrests. They observed two black males, later identified as defendant and a juvenile, J.J., standing in front of a grocery store located at 34th Street and Westfield Avenue. At the time, the officers were parked approximately one block from the grocery store and had an unobstructed view.
The officers observed a black female approach defendant. Defendant directed the female to J.J. After a brief conversation between the female and J.J., she passed him what appeared to be paper currency. J.J. removed a bag from his pocket, removed a small item from the bag, and handed it to the female. The female then immediately left the area. J.J. walked over to defendant and handed him the paper currency. Based on the officers' training and experience, they believed that they had witnessed a narcotics transaction.
A short while later, the officers observed a white minivan drive into the grocery store's parking lot. The driver, a white female, began talking to defendant. Defendant directed the female to J.J.*fn1 The female handed J.J. currency. J.J. then reached into a bag, removed a small item, and handed it to the female. The female immediately left the area. J.J. walked over to defendant and handed him the currency. Both officers believed that they had witnessed another narcotics transaction.
Following the second transaction, the officers requested a "take-down or an arrest unit." A marked police car arrived less than one minute later. Beltran and Mateo observed defendant and J.J. walk into the grocery store as the marked car drove up the street. They also observed Officers George Reese and Eluid Torres follow defendant into the store. Reese and Torres then exited the store with defendant in handcuffs.
Torres testified that J.J. was still outside the grocery store when he and Reese arrived. Torres entered the grocery store after defendant had entered. Based on a description of defendant from Beltran and Mateo, Torres arrested defendant near the rear of the store. A search of defendant revealed paper currency in his pocket, which the officers left there.
Reese arrested J.J. A search of J.J. revealed $3 and a brown paper bag containing a plastic sandwich bag. The plastic bag contained twenty "peach, transparent, plastic bags containing a white rock-like substance[.]" Later test results concluded that the substance in the plastic bags was cocaine.
J.J. and defendant were placed in the marked police car and transported to the Detective Bureau. Once there, a further search of J.J. revealed four more bags of cocaine in his sock. Beltran also recovered $107 from defendant, consisting of three $20 bills, one $10 bill, two $5 bills, and twenty-seven $1 bills.
Investigator Charles Farrell, the State's expert in street-level drug transactions, testified that the two transactions Beltran and Mateo observed were probably drug transactions in which defendant and J.J. were probably both involved. The expert also testified that the results of the searches of defendant and J.J. further indicated that the two were working together distributing drugs.
At the close of the State's case, defendant filed a motion for a judgment of acquittal on all counts. The judge denied the motion, stating:
This is a motion for judgment of acquittal under Rule 3:18-1. In such a motion, the Court must not only grant all reasonable inferences, but under [State v. Reyes, 50 N.J. 454, 459 (1967)], all reasonable inferences which could reasonably be drawn from the testimony.
I am not here at this point to judge the credibility of [the police officers]. I am here only at this point to accept their testimony because all reasonable inferences must be given to the State at this point.
There's testimony from two officers that they observed the defendant in close proximity to the juvenile co-defendant, both of whom said that a person approached this defendant on one occasion, that . . . the defendant in some way indicated . . . for that person, the buyer, to approach the co-defendant, that they saw the person -- I'm going to call the person a buyer at this point since I'm giving all inferences to the State -- hand money to the juvenile, receive some small object back, and that subsequently the juvenile approached the defendant and passed the money to the defendant.
There's expert testimony that says that . . . is the manner in which a drug sale . . . can take place. He explained why.
When giving all reasonable inferences to the State, I think they have carried their burden at this point and the motion is denied.
Defendant contends that the judge erred in denying his motion because the State's evidence was insufficient to prove constructive possession of CDS. He argues that Beltran's and Mateo's testimony did not establish that he possessed cocaine, or that he exercised control and dominion over the cocaine found on J.J.
We use the same standard as the trial judge in reviewing a motion for judgment of acquittal. State v. Johnson, 287 N.J. Super. 247, 268 (App. Div.) (citing State v. Moffa, 42 N.J. 258, 263 (1964)), certif. denied, 144 N.J. 587 (1996); State v. Tarver, 272 N.J. Super. 414, 425 (App. Div. 1994). We must determine "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony, as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find defendant guilty of the charge beyond a reasonable doubt." Reyes, supra, 50 N.J. at 459 (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed. 2d 396 (1962)); see also State v. Spivey, 179 N.J. 229, 236 (2004); State v. Josephs, 174 N.J. 44, 81 (2002); R. 3:18-1.
In order to survive defendant's motion, the State had to prove all of the elements of counts two, three and four beyond a reasonable doubt. If the State's evidence was sufficient to prove these counts, it would be sufficient to prove the elements of count one. To prove count two, possession of CDS with intent to distribute, the State had to prove that: (1) the substance in evidence is cocaine; (2) defendant possessed, or had the cocaine under his control; (3) defendant, when he possessed or had the cocaine under his control, had the intent to distribute it; and (4) defendant acted knowingly or purposely in possessing or having the cocaine under his control with intent to distribute. Model Jury Charge (Criminal), "Possession of a Controlled Dangerous Substance with Intent to Distribute (2C:35-5)," 1992.
To prove count three, possession with intent to distribute CDS near or on school property, the State had to prove that: (1) the substance in evidence is cocaine; (2) defendant possessed or had the cocaine under his control; (3) defendant had the intent to distribute the cocaine when he possessed it or had it under his control; (4) defendant acted knowingly or purposely in so doing; and (5) the act occurred on or within 1000 feet of any school property. Model Jury Charge (Criminal), "Possession with Intent to Distribute Controlled Dangerous Substances Near Or On School Property Used for School Purposes (2C:35-7)," 1992.*fn2
To prove count four, employing a juvenile in a drug distribution scheme, the State had to prove that: (1) defendant was at least 18 years of age; (2) defendant used, solicited, directed, hired or employed a juvenile to commit or aid in the commission of a crime; (3) defendant acted knowingly; and (4) the person used, solicited, directed or employed was in fact 17 years of age or younger. Model Jury Charge (Criminal), "Employing a Juvenile in a Drug Distribution Scheme, N.J.S.A. 2C:35-6," 1998. An adult is not guilty of this crime simply because he or she is involved in an illegal transaction with a juvenile. State v. Laws, 262 N.J. Super. 551, 561 (App. Div. 1993), certif. denied, 134 N.J. 475 (1993). "The use of the active verbs in the statute requires that the adult control the juvenile." Ibid. However, courts broadly interpret "use" consistent with its ordinary meaning. See State v. S.C., 289 N.J. Super. 61 (App. Div.)(holding that bringing a three-year- old child on heroin pick ups to avoid police suspicion while driving constituted use), certif. denied, 145 N.J. 373 (1996).
Defendant does not dispute that the white rock-like substance in the bags found on J.J. was cocaine. He also does not dispute that the incident occurred within 1000 feet of a school, that he was at least 18 years of age, or that J.J. was 17 years of age or younger. Rather, he contends that the State failed to prove that he exercised control and dominion over the cocaine found on J.J. sufficient to establish constructive possession. We disagree.
Criminal possession involves an "intentional control and dominion, the ability to affect physically and care for the item during a span of time," State v. Davis, 68 N.J. 69, 82 (1975), "accompanied by knowledge of its character." State v. Brown, 80 N.J. 587, 597 (1979). Possession can be constructive as opposed to actual. Ibid. All that is required "is an intention to exercise control over [the item] manifested in circumstances where it is reasonable to infer that the capacity to do so exists." Ibid. Possession cannot be inferred simply because a defendant is present at a location where narcotics are found, "unless there are other circumstances . . . tending to permit such an inference to be drawn." Id. at 593 (citation omitted).
Based upon our careful review of the record, viewed in a light most favorable to the State, we are satisfied that the evidence was sufficient to prove, beyond a reasonable doubt, that defendant constructively possessed or had under his control the cocaine found on J.J. with the intent to distribute it within 1000 feet of a school property. We are also satisfied that defendant used J.J. to commit or aid in the commission of a crime.
Defendant contends for the first time that, based upon his testimony and inconsistencies in Beltran's and Mateo's testimony, the judge should have set aside the verdict and granted him a new trial. However, defendant never sought a new trial below. Thus, he is precluded from doing so on appeal. State v. Johnson, 203 N.J. Super. 127, 133 (App. Div.), certif. denied, 102 N.J. 312 (1985) (citing R. 2:10-1; State v. McNair, 60 N.J. 8, 9 (1972); State v. Kyles, 132 N.J. Super. 397, 410 (App. Div. 1975)); see also R. 3:20-1.
Nevertheless, defendant has not clearly and convincingly shown that there was a miscarriage of justice under the law. State v. Sims, 65 N.J. 359 (1974), 373-74 (citing Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969)); Johnson, supra, 203 N.J. Super. at 134.. Based upon our review of the record, we are satisfied that the evidence amply supports the guilty verdict.
We now address defendant's sentence. Defendant contends that the imposition of a consecutive sentence on count four was improper. He also contends that pursuant to State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), he should have received to concurrent sentences on counts three and four. We disagree.
We review a judge's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 (2006); State v. Roth, 95 N.J. 334, 364-66 (1984). When reviewing a judge's sentencing decision, we "may not substitute [our] judgment for that of the trial court[.]" State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, we may review and modify a sentence when the judge's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In determining the propriety of a sentence, we must make sure that sentencing guidelines were not violated, determine that findings on aggravating and mitigating factors are based on the evidence and decide whether application of the guidelines make a particular sentence clearly unreasonable that it shocks the judicial conscience. Roth, supra, 95 N.J. at 364-65; O'Donnell, supra, 117 N.J. at 215.
Our careful review of the record convinces us that, although the judge did not specifically refer to Yarbough, she properly considered all of the factors for imposing a consecutive sentence and adequately explained her analysis of those factors. We agree with the judge's conclusion that the crimes charged in counts three and four, although committed at the same time, were separate crimes. One involved the sale of drugs and the other involved the use of a juvenile to commit a crime.
We also agree with the judge's characterization of J.J. as a "victim." N.J.S.A. 2C:35-7 is aimed at affording "special protection to all children from the 'perils of drug trafficking' by ensuring that schools and adjacent areas are 'kept free from distribution activities.'" State v. Shabazz, 263 N.J. Super. 246, 253 (App. Div.), certif. denied, 133 N.J. 444 (1993) (quoting N.J.S.A. 2C:35-1.1c). N.J.S.A. 2C:35-6 is aimed at preventing "the 'insidious act of employing children in any drug distribution scheme' by an adult.  The statute is intended to protect children from the acts of adults[.]" State v. Lassiter, 348 N.J. Super. 152, 160 (App. Div. 2002) (quoting State v. Collins, 262 N.J. Super. 230, 235 (App. Div. 1993) and 1987 Legislative Commentary, reprinted in Cannel, New Jersey Criminal Code Annotated on N.J.S.A. 2C:35-6)). Thus, the two offenses are completely distinct and separate, warranting a consecutive sentence.
Defendant also contends that this matter should be remanded for re-sentencing pursuant to State v. Thomas, 187 N.J. 119 (2006) because the extended-term sentence imposed on count three was above the presumptive term. Defendant argues that although he was convicted of three prior indictable offenses, none were violent, and only one involved drug-related activity. He concludes, therefore, that the judge should have given the risk of re-offense and the need to deter little weight.
Defendant also contends that the judge should have found mitigating factors one (his conduct neither caused nor threatened serious harm), N.J.S.A. 2C:44-1b(1), and two, (he did not contemplate that his conduct would cause or threaten serious harm), N.J.S.A. 2C:44-1b(2). He further contends that his age (22 years) should have been considered. We disagree
We emphasize that defendant was sentenced after Thomas. Thus, the judge could not, and did not, begin her sentencing analysis at a presumptive term. Rather, she considered the nature and degree of the crime, the need for punishment and deterrence, defendant's prospects for rehabilitation, the pre- sentence report, defendant's previous involvement with the criminal justice system and the public interest. Based upon her analysis, she found aggravating factors three (the risk that defendant will commit another offense) N.J.S.A. 2C:44-1a(3), six (the extent of defendant's prior criminal record and the seriousness of the offense of which he has been convicted), N.J.S.A. 2C:44-1a(6), nine (the need for deterring defendant and others from violating the law), N.J.S.A. 2C:44-1a(9). The judge found no mitigating factors. After balancing the aggravating and mitigating factors, the judge imposed a sentence within the extended term range for a third-degree crime. N.J.S.A. 2C:43-7a(4).
We discern no reason to disturb the sentence, as it is amply supported by the record. Defendant has three juvenile adjudications, two for possession of a firearm without a permit. Defendant also has three prior adult convictions in New York, a 2005 municipal conviction in Camden for simple assault, and three prior adult convictions in New Jersey (1) in 2000 for distributing CDS within a school zone, for which he served a mandatory-minimum prison term and was paroled; (2) in 2000 for obstructing the administration of law, for which he served a prison term and was paroled; and (3) in 2003 for receiving stolen property, for which he received probation. The record does not support consideration of defendant's age or the mitigating factors he requests.
Finally, although not raised by defendant, we conclude, and the State concedes, that count two should have been merged with count three for sentencing purposes. A charge under N.J.S.A. 2C:35-5 of possession with intent to distribute, merges with a charge under N.J.S.A. 2C:35-7 of possession with intent to distribute less than 1000 feet from a school property. State v. Dillihay, 127 N.J. 42, 44-45 (1992).
Thus, we affirm defendant's conviction and sentence, except count two shall be merged with count three for sentencing purposes.